U.S. Dept. of Justice, I.N.S., Border Patrol, El Paso, Tex. v. Federal Labor Relations Authority

• Decision Date: 19 March 1992
• Docket Number: No. 91-4153,91-4153
• Citation: 955 F.2d 998
• Parties: 139 L.R.R.M. (BNA) 2820 UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, BORDER PATROL, EL PASO, TEXAS, Petitioner Cross-Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 998

955 F.2d 998

139 L.R.R.M. (BNA) 2820

UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, BORDER PATROL, EL PASO, TEXAS, Petitioner Cross-Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent Cross-Petitioner.

No. 91-4153.

United States Court of Appeals, Fifth Circuit.

March 19, 1992.

E. Roy Hawkens, William Kanter, Attys., Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., for petitioner cross-respondent.

James F. Blandford, Atty., William E. Persina Sol., F.L.R.A., William R. Tobey, Deputy, Arthur A. Horowitz, Associate Sol., Washington, D.C., for respondent cross-petitioner.

Judith D. Galat, Mard D. Roth, General Counsel, Am. Fed. of Gov't Emp., Washington, D.C., for intervenor Am. Fed. of Gov't Emp., N.B.P.C.

Barbara A. Atkin, Gregory O'Duden, N.T.E.U., Washington, D.C., for National Treasury Empl. Union.

Petition for Review and Cross-Petition for Enforcement of an Order of the Federal Labor Relations Authority.

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The question in this case is whether uniformed border patrol agents have either the statutory or constitutional right to wear union lapel pins on their uniforms. The administrative law judge and the Federal Labor Relations Authority (FLRA) both held that the INS committed unfair labor practices when it required an agent to remove his pin and later gave him a lower appearance rating for wearing it.

On appeal, the FLRA and the amicus union argue that both the statute which protects the right to "assist labor organizations," and the First Amendment, which protects free speech, assure the right to wear union pins. On the other hand, the INS argues that its right to require a uniform, which has been sanctioned by the courts, includes the right to prohibit adornments to that uniform. The INS further argues that, since it is a law enforcement agency, its policy requiring unadorned uniforms is entitled to deference. We agree and hold that the border patrol agents do not have the right to wear union lapel pins while on duty, and, consequently, that the INS did not commit any unfair labor practices by interfering with that right. We also hold that the INS's anti-adornment policy does not violate the border patrol agents' First Amendment rights. Therefore, we deny enforcement of the FLRA's order.

I

This case arises out of a consolidated unfair labor practice proceeding brought under the Federal Service-Labor Management Relations Statute (Statute). ¹ It involves a FLRA adjudication of two unfair labor practice complaints based on charges filed by the American Federation of Government Employees, National Border Patrol Council. The complaints alleged that the INS violated section 7116(a)(1) of the Statute by interfering with the rights of bargaining unit employees to assist labor unions by prohibiting them from wearing a small union lapel pin while on duty and by lowering an employee's appearance rating because he wore a union pin. ²

The cases were first heard separately, but by the same ALJ. ³ In both cases, the ALJ found that the INS's conduct violated the Statute. The INS filed exceptions to the ALJ's decisions with the FLRA and the FLRA consolidated the cases.

The FLRA agreed with the ALJ that the INS had committed unfair labor practices by interfering with, restraining and coercing an employee in the exercise of his rights under section 7102 to form, join, or assist a labor organization by prohibiting the employee from wearing a union lapel pin while on duty, and by lowering an employee's appearance rating for wearing a union pin. The FLRA concluded that section 7102 does grant federal employees the right to wear a union pin unless special circumstances exist, and that no special circumstances existed in this case. Accordingly, the FLRA ordered the INS to cease and desist such practices and take affirmative action to effectuate the purpose and policy of the Statute. The INS now petitions for a review of the FLRA's decision.

II

We first address the standard of review for this appeal. Section 7123(c) provides that a review of the FLRA's order shall be on the record and in accordance with 5 U.S.C. § 706. Section 706, in turn, provides that we should not set aside agency action unless the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). The FLRA's findings of fact are to be affirmed if supported by substantial evidence. 5 U.S.C. § 7123(c). The FLRA's legal construction of the Statute is entitled to deference if it is reasoned and supportable. INS v. FLRA, 855 F.2d 1454, 1458 (9th Cir.1988) (INS I ).

III

The FLRA argues that the right to wear union buttons is found in the broad right under section 7102 to form, join or assist a labor union, which reads in relevant part Each employee shall have the right to form, join, or assist any labor organization ... freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right.

The FLRA argues that wearing the pin assists the Union by publicizing its existence, demonstrating employee support for the labor union, and showing pride and affiliation.

The INS argues that although publicizing the existence of the Union and demonstrating support generally fall within the scope of Section 7102, congressional intent and legal precedent indicate that section 7102 does not grant the right to wear union insignia. The INS basically adopts the reasoning advanced by the Ninth Circuit in INS I. There, the court pointed out that section 7102 was patterned after Section 7 of the National Labor Relations Act (NLRA). Section 7 of the NLRA provides in relevant part:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.

29 U.S.C. § 157. The Ninth Circuit then concluded that the right to wear a union lapel pin under the NLRA was conferred by the right "to engage in other concerted activities" language, and that Congress intentionally left this NLRA language out of the Statute. INS I, 855 F.2d at 1459.

In reaching this conclusion, the Ninth Circuit relied on Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). The Ninth Circuit held that in Republic Aviation, the Supreme Court concluded that the right to wear union buttons arose from the right "to engage in other concerted activities" under Section 7 of the NLRA. INS I, 855 F.2d at 1459. Republic Aviation involved the discharge of three employees for wearing union steward buttons in violation of the employer's no solicitation rule. The Court found that the enforcement of the no solicitation rule violated the NLRA because it interfered with the employees' rights under section 7 of the NLRA. Republic Aviation, 324 U.S. at 795-96, 65 S.Ct. at 984. The Court, however, did not hold expressly that the right to wear a union button arose only from the right "to engage in other concerted activities" in section 7. Nor can we read into the case such an implicit holding. Indeed, the Supreme Court recognized and approved the National Labor Relations Board's conclusion that:

the right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity, and the respondent's curtailment of that right is clearly violative of the Act.

Id. at 802 n. 7, 65 S.Ct. at 988 n. 7 (emphasis added). Therefore, the INS's reliance on Republic Aviation and the Ninth Circuit's analysis of that case, we think, is misplaced.

The INS also argues that Congress meant to circumscribe the rights of federal employees more than the rights of private employees, and that its interpretation of section 7102 is consistent with the intent of Congress. The INS cites Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 278 n. 13, 94 S.Ct. 2770, 2778 n. 13, 41 L.Ed.2d 745 (1974), to support its conclusion that Congress meant to refrain from granting federal employees the right to wear union pins. Although it is true that federal employees do not enjoy the same rights as private employees, the FLRA correctly points out that in Letter Carriers, the Supreme Court only discussed greater restrictions on federal employees in the context of strikes and picketing:

The absence of mention of a right to engage in concerted activities is no more than a reflection of the fact that the order does not permit federal employee unions to engage in strikes or picketing.

Id.

The INS also contends that to hold that the federal employee's right to wear a union pin arises from the right to assist labor unions would create a disparity between public and private employees, because the private employee's right to assist labor unions does not include the right to wear a pin. This asserted disparity is premised, however, on the INS's conclusion that the private employee's right to wear a union pin arises from the right to engage in other concerted activities, not the right to assist labor unions. Its argument is therefore contingent on its flawed analysis of Republic Aviation. All other courts have grounded the private employee's right to wear union insignia in section 7 generally, not narrowly in the right to engage in other concerted activity. See NLRB v. Floridan Hotel of Tampa, Inc., 318 F.2d 545, 547 (5th Cir.1953); Fabri-Tek, Inc. v. NLRB, 352 F.2d 577, 584-85 (8th Cir.1965); NLRB v. Mayrath Co., 319 F.2d 424, 426 (7th Cir.1963).

The INS's argument that Ninth Circuit precedent and congressional intent compel the conclusion that the right to assist labor unions does not include the right to wear a union lapel pin is without merit. The FLRA's conclusion that section 7102,...